DONALD R. YOUNG, ADMINISTRATOR WITH WILL ANNEXED OF THE ESTATE OF RUSSELL WESLEY YOUNG, DECEASED, AND GEORGIANNA YOUNG, APPELLANTS,
v.
SARA TAYLOR, EXECUTRIX OF THE ESTATE OF E. M. SCHULTZ, SR., DECEASED, APPELLEE
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Appellants challenged a jury verdict in a wrongful death case arising from an automobile collision, claiming the trial court erred in instructing the jury on contributory negligence and sudden emergency. The appellate court affirmed, holding that appellants waived the contributory negligence objection by requesting the instruction themselves, and that sufficient evidence supported the sudden emergency instruction.
The trial court committed no error. First, appellants cannot assign as error the giving of an instruction they themselves requested. Second, the evidence was sufficient to establish the presence of a third car and warrant submission of the sudden emergency instruction to the jury, which is ordinarily a fact question for the jury.
“A party cannot assign as error the giving of a charge which he, himself, requested.”
Establishes the waiver principle that prevents appellants from objecting to the contributory negligence instruction they had requested.
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Join FLexlaw to unlock all legal intelligenceAn automobile collision involving the appellants' decedent, Russell Wesley Young, and the appellee's decedent, E. M. Schultz, Jr., occurred in Lee Cou…
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Appellants, plaintiffs below, timely file this appeal from a final judgment of the trial court based on a jury verdict rendered in favor of appellee, defendant below. The final orders appealed from are the final judgments in favor of defendant and the denial’ of appellants’ motion for a new trial.
This cause came to trial as a result of an automobile collision involving appellants’ decedent, Russell Wesley Young, and appellee’s decedent, E. M. Schultz, Jr. The accident occurred in Lee County, Florida, on September 21, 1965.
This appeal centers around two alleged errors of the trial court in giving of instructions to the jury. The first instruction assigned as error by the appellants is the instruction on contributory negligence. We note from the record that an objection was properly raised by the appellants to this instruction at the close of the complete charge to the jury. It was also properly assigned as error in appellants’ motion for new trial. However, we also note from the record, as mentioned by the trial court in its order denying the motion for new trial, that this instruction was requested by appellants in their requested instruction number one.
A party cannot assign as error the giving of a charge which he, himself, requested. Bradley v. Associates Discount Corp., Fla.1952, 58 So.2d 857; Tatum Brothers Real Estate & Investment Co. v. McSweeney, 1919, 78 Fla. 89, 82 So. 605. We cannot for the purposes of this appeal consider as error an instruction which appellants have requested and then subsequently assign as error.
Appellant contends that the court below erred in giving the instruction on sudden emergency. Appellant specifically alleges that the evidence as presented was insufficient to warrant the sudden emergency instruction.
We cannot agree with appellants’ contention. In looking at the evidence as presented we find that the evidence was sufficient in establishing the presence of the third car and its relationship to the accident in question. Ordinarily the presence or absence of a sudden emergency is a fact question for the jury. The evidence as presented did show that the factual requirements necessary to support an instruction on the sudden emergency doctrine were present, and we find no error in granting appellee’s requested instruction on this doctrine. Dupree v. Pitts, Fla.App.1964, 159 So.2d 904.”
From a careful review of the record we find sufficient evidence to warrant the submission of this case to the jury for its determination. We do find the evidence sufficient to support the findings of the jury-
We conclude that there is no error in the record or in the rulings of the trial court. We therefore affirm the judgment of the trial court and the order denying the appellants’ motion for new trial.
Affirmed.
PIERCE and HOBSON, JJ., concur.
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The Cnty. OF Volusia v. Niles, 445 So. 2d 1043 (Fla. 5th DCA 1984)…ies, Inc. v. Morgart, 412 So. 2d 950 (Fla. 5th DCA 1982). Thus, a litigant may not urge error with respect to instructions given at his own request. See, e.g., Glabvo Dredging Contractors v. Brown, 374 So. 2d 607 (Fla. 3d DCA 1979); Young v. Taylor, 212 So. 2d 25 (Fla. 2d DCA 1968); North Shore Hospital, Inc. v. Luzi, 194 So. 2d 63 (Fla. 3d DCA 1967); Park v. Belford Trucking Co., 165 So. 2d 819 (Fla. 3d DCA 1964), cert. dismissed, 174 So. 2d 398 (Fla.1965). By inviting the jury to pass on the issue of liabi…
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Glabvo Dredging Contractors v. Brown, 374 So. 2d 607 (Fla. 3d DCA 1979)…oyee of the joint venture) damages for support and services. A party who submits a proposed jury instruction which is adopted by the trial court and given to the jury, may not be heard to urge, on appeal, error in such instruction. Young v. Taylor, 212 So. 2d 25 (Fla. 2d DCA 1968). A jury in a maritime personal injury case is free to allow damages for loss of support and services, although not damages for pain and suffering. Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (197…
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Torres v. Sell, 502 So. 2d 521 (Fla. 3d DCA 1987)…resence or absence of a sudden emergency situation is a question of fact ordinarily to be decided by the jury. Scott v. City of Opa Locka, 311 So. 2d 825, 827 (Fla. 3d DCA 1975); Darr v. Aglin, 279 So. 2d 62, 64 (Fla. 1st DCA 1973); Young v. Taylor, 212 So. 2d 25 (Fla. 2d DCA 1968); see also Schubowsky v. Hearn Food Store, Inc., 261 So. 2d 162, 162 (Fla.1972) (Ervin, J„ dissenting). So, too, is the issue of whether, under the circumstances, the defendant reacted to the situation in a prudent manner. Clevelan…
Authorities Cited
- Dupree v. Pitts, 159 So. 2d 904 (Fla. 3d DCA 1964)
- Bradley v. Assocs. Disc. Corp., 58 So. 2d 857 (Fla. 1952)
- Tatum Bros. Real Est. & Inv. Co. v. McSweeney, 78 Fla. 89 (Fla. 1919)